Bombay High Court
Ajay Keshavrao Charde vs The State Of Maha., Thr. Its Secretary, ... on 25 October, 2024
Author: M.S. Jawalkar
Bench: Avinash G. Gharote, M.S. Jawalkar
37) wp 1212-2023.odt 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1212 OF 2023
Mr. Ajay Keshavrao Charde,
Aged about 40 years, Occ. Service, R/o.
114 Narmada Colony, Katol Road,
Nagpur, Dist. Nagpur ....PETITIONER
....VERSUS....
1. The State of Maharashtra,
through its Secretary,
Department of Education,
Mantralaya, Mumbai - 32
2. Dy. Director of Education,
Nagpur Division, Nagpur.
3. Education Officer (Sec),
Zilla Parishad, Nagpur.
4. The Secretary,
Navjeevan Shikshan Sanstha,
419, Sanjeevani Apartment,
Hanuman Nagar, Nagpur-440024
5. Rani Chitralekha Devi Raje Bhosle
Secondary Vidyalaya, Through its
Headmaster, Kannahgaon, Post
Ridhora (Satgaon), Tah. Hingna,
Nagpur, Dist. Nagpur. ....RESPONDENTS
-----------------------------------------------------------------------------------------
Shri P.P.Thakare, Advocate for petitioner.
Shri N.R.Rode, AGP for respondent Nos. 1 to 3.
Shri A.D. Bhate, Advocate for respondent No. 4.
-----------------------------------------------------------------------------------------
37) wp 1212-2023.odt 2/12
CORAM : AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
DATE OF RESERVING THE JUDGMENT: 14/10/2024
DATE OF PRONOUNCING THE JUDGMENT : 25/10/2024
JUDGMENT (PER: SMT. M.S. JAWALKAR, J.)
Heard.
2. The petitioner is seeking to question the legality,
validity and propriety of the action on the part of the
respondents, particularly, the respondent Management is not
paying regular 100% salary of the petitioner admissible to the
post of Assistant Teacher and arrears of salary w.e.f.
27/10/2021 though he is factually working.
3. It is the case of the petitioner that he holds the
qualification of HSC, D.Ed. and B.A. (Graduation). The
petitioner belongs to OBC category. After considering the
eligibility and qualification of the petitioner the respondent
society appointed the petitioner w.e.f. 26/06/2012 in the
school viz. in Rani Chitralekha Devi Raje Bhosle Secondary
Vidyalaya, Kanhlagaon, Post Ridhora (Satgaon), Tah. Hingna,
Nagpur, Dist. Nagpur, which was non-aided school to teach
classes of 6th to 8th standard.
4. The respondent Education Officer (Sec.) Zilla
Parishad, Nagpur granted approval to the appointment of the
petitioner vide approval order dated 15/06/2013. The Pay
Scale applicable to the post on which the petitioner was
appointed was Rs. 5200-20,200 and Grade Pay was Rs. 2800/-.
The petitioner had completed his probation period on
30/04/2014 and since 01/05/2014 and was working as
permanent teacher in the aforesaid school to teach classes of
6th to 8th Standard.
5. It is submitted by the petitioner that the
respondent nos. 1 and 2 had terminated the services of the
petitioner w.e.f. 26/06/2015 by not permitting him to sign on
the Muster Roll, which amounts to otherwise termination.
The said termination was questioned by the petitioner before
the learned School Tribunal, Nagpur by preferring Appeal
No. 10/2017. The said appeal came to be allowed by the
learned School Tribunal vide judgment dated 07/10/2019 and
thus, the impugned Termination Order dated 26/06/2015
came to be quashed and set aside. By the said order the
respondent Management was directed to reinstate the
petitioner in service and also pay full back wages and grant
him continuity in service within 30 days from the date of the
judgment. In spite of specific directions, the respondent
Management was reluctant to join the petitioner in service on
the ground that the respondent Management had taken
decision to file Writ Petition to question the said judgment
before this Court.
6. The respondent Management had filed Writ
Petition No. 8314/2021 before this Court and the same was
dismissed by this Court vide judgment dated 14/10/2021 and
thus, the judgment delivered by the learned School Tribunal
came to be upheld.
7. After the dismissal, the Respondent Education
Officer vide his communication dated 7.11.2019 directed the
respondent Management to reinstate the petitioner in service
immediately. After almost more than 1 and 1/2 years, the
respondent Management had permitted the petitioner to join
the duties on 26.10.2021, however, it did not pay the
back-wages as directed by the learned School Tribunal. For
non-compliance of the directions of the learned Tribunal, the
petitioner has preferred Contempt Petition bearing
No.172/2022, wherein the contempt Court had issued
contempt notices to the respondent management.
8. After reinstatement in the employment, the
respondent Management passed Resolution on 08.12.2021 in
Management Executive Committee Meeting and as per
subject nos. 5 and 6, it was resolved to transfer the petitioner
in 100% aided school and to grant him all consequential
benefits including continuity in service and to forward his
proposal for Shalarth I.D. as the said powers are vested with
the Management as per Rule 41 of the M.E.P.S. Act and Rules.
Accordingly, the petitioner came to be transferred from
partially unaided section to aided section vide transfer order
dated 13.12.2021 and since then, he is working there as an
Assistant Teacher but he is not being paid 100% salary and
only receiving 40% salary from the Education Department.
9. Since the petitioner was not being paid salary, the
respondent Education Officer heard the concerned parties on
24.2.2022 and directed to the respondent Management to take
necessary steps to release his salary which was communicated
vide communication dated 10.3.2022. The respondent
Education Officer rejected the proposal of transfer after
pointing out certain deficiencies in the said proposal dated
04.04.2022. The petitioner had filed Writ Petition no.
4449/2022 against the said rejection. This Court while
rejecting the claim of the petitioner for transfer from unaided
to aided section granted specific liberty to the petitioner to file
appropriate proceedings for unpaid salary. The respondent
Management has not paid remaining 60% salary on the
ground that the school receives only 40% grants. Hence this
present petition.
10. Learned counsel for the petitioner contended that
the petitioner is performing his regular duties since last more
than 3 years but without assigning any reason, the
respondents are not ameliorating his grievance by not paying
him 100% salary. The petitioner is teaching classes of 6th to
8th standard and the said sections are being run on partially
grants from the State Exchequer and therefore, only 40%
salary is being to the petitioner and remaining salary to the
extent of 60% is to be borne by the respondent Management,
who has deprived the said benefit to the petitioner in a most
illegal and malafide manner and therefore, the said action
deserves to be quashed and set aside.
11. The learned AGP for respondent no. 1 to 3
contended that the respondent has followed the due
procedure of law and time and again directed the respondent
Management/School to comply the directions of the learned
Tribunal and this Court scrupulously. The action taken by the
respondent is within the preview of law which is just and
legal which is liable to be maintained. Accordingly, prayed
for the dismissal of the instant petition.
12. Shri Bhate, learned counsel for respondent no. 4
contended that the petitioner is not entitled for his salary as
the petitioner has been declared as excess teacher in
respondent no. 5 School by the education officer vide order
dated 07/10/2023. Moreover, it was mutually agreed by the
petitioner at the time of his appointment that, he would not
claim salary in excess of the amount received towards grant
from State Government as it was made clear to the petitioner
at the time of his appointment that respondent No. 4 was not
a profit making organization and was merely a Charitable
Trust and not having its own funds. Hence, the petitioner had
readily joined service to gain experience till the admissible
grant payable by the State Government. Thus, he is not
entitled to receive salary as claimed in the petition and prayed
for the dismissal of the present petition.
13. The learned Counsel for the respondent no. 4
relied on Shaikh Tausif Ahmed Khamar Pasha V/s. Ambar
Shikshan Prasarak Va Bahuddeshiya Sevabhavi Sanstha thr.
President, Aurangabad [Judgment of this Court in Writ
Petition No. 10009/2017, decided on 05/08/2022]
14. Heard Shri P.P. Thakare, learned Counsel for
petitioner, Shri N.R. Rode, learned Assistant Government
Pleader for respondent Nos.1 to 3 and Shri A.D. Bhate,
learned Counsel for respondent Nos.4 and 5. It is not denied
by respondent Nos.4 and 5 that petitioner came to be
appointed as an Assistant Teacher on 26.06.2012. His services
came to be approved on 15.06.2013 w.e.f. 26.06.2012, till the
period of probation. The said approval makes it clear that the
approval is granted to the appointment on no grant basis and
payment of salary is the responsibility of the Management.
15. It is contended by respondent No.4 that the
petitioner accepted the appointment on no grant basis only to
gain experience and was waiting for post to be sanctioned for
grant-in-aid basis. After completion of probation, petitioner
acquired status of confirm employee. As his services put to an
end in pursuance of resignation dated 22.07.2015, he
challenged the same to the School Tribunal on 14.03.2017. The
School Tribunal concluded that alleged resignation is
obtained by forceful act on the part of respondents. As such,
the otherwise termination is set aside by the School Tribunal
and petitioner was directed to be reinstated with continuity in
service along with full back-wages. The Management and
School challenged the said order in Writ Petition
No.8314/2019. However, the said petition came to be
dismissed and order of School Tribunal was confirmed on
14.10.2021. The petitioner was allowed to resume duties,
however, he was transferred to aided School as there was no
vacancy in unaided School. Accordingly, proposal was sent to
the Education Officer vide letter dated 04.04.2022, however,
the same came to be rejected by the Education Officer on
17.05.2022 as there were some deficiencies in proposal
mentioned in the letter itself.
16. The petitioner herein challenged the action on the
part of Management withdrawing the proposal seeking
permission to transfer the petitioner from 40% aided post to
100% aided post. The said Writ Petition No.4449/2022 came
to be dismissed by this Court on 31/01/2023. It is contention
of the Management that petitioner declared as surplus in the
Institution by the Education Officer vide order dated
07.10.2023. However, the said order is not placed on record by
the respondent No.4. It appears that instead of complying or
removing the deficiencies as mentioned by the Education
Officer while rejecting the approval, the Management
preferred to withdraw the proposal of transfer itself.
Admittedly, the petitioner has not challenged non-payment of
salary till 2017.
17. There may be substance in the contention of the
respondent- Management that petitioner joined the duties to
gain the experience, however, that cannot absolve the
management from making payment as there is no such
condition in the appointment order. Thus, it would be
responsibility of the Management to pay 60% arrears of
emoluments to the petitioner. It is not the case that petitioner
has not initiated any proceedings in the Court of law. He
challenged his otherwise termination before the School
Tribunal in 2017.
18. The respondent-Management though filed
petition against the said order could not succeed in the
petition, even if there is order of declaring petitioner as
surplus teacher on 07.10.2023, the Management is liable to
pay 60% arrears of emoluments to the petitioner w.e.f.
27.10.2021 as claimed by petitioner. Accordingly, we proceed
to pass the following order:
ORDER
i) The Writ Petition is allowed.
ii) The respondent No.4- Management is hereby directed to
pay 60% of salary, within a period of one month for the
period from 27.10.2021 till the date the petitioner has declared
as surplus teacher.
19. The Writ Petition stands disposed of in above
terms. No order as to costs.
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
Khapekar/ R.S. Sahare
Signed by: Mrs. Ranjana Sahare
Designation: PA To Honourable Judge
Date: 04/11/2024 13:27:23
